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Sunday, September 9, 2012

Ethics of Accumulated Earnings tax

Accumulated earnings tax
This paper is a study of accumulated earnings tax. The study of accumulated earnings tax begins with the definition of accumulated earnings tax (AET), case law, with a study of Apple, cash reserves, accumulated earnings, dividends and the avoidance of accumulated earnings tax.
The definition of accumulated earnings tax is tax imposed by the United States government on companies with retained earnings that are deemed to be unreasonable and in excess of what is considered ordinary. Ordinary is $250,000 plus taxation payments. The federal government uses this tax to deter investors from negatively influencing a company’s decision to pay dividends. Essentially, this tax persuades companies to issue dividends, rather than retaining the earnings. The premise behind this is that companies that retain earnings experience higher stock price appreciation. The Internal Revenue Service is not in business to increase stock prices. However, the IRS may indirectly benefit from the increase in stock price. The government has set an extra tax on the retained earnings when excess accumulated earnings occur. If a dividend is paid the IRS will collect a tax from the stockholders. Plainly, speaking the Accumulated Earnings Tax threat is intended to encourage C corporations to make timely payments of dividends, thus triggering the double taxation of C corporation earnings. The Accumulated Earnings Tax rate is tied to the dividend rate. The dividend tax rate is 15% through 2012. Historically, the AET rate was much higher than the dividend rate. This is not the case now nor will it in the near future; as it is an election year.
The third definition of accumulated earnings tax is a penalty tax that is imposed on C corporations, the IRS perceives as trying to avoid or defer shareholder income tax through an unnecessary accumulation of earnings. There is no bright-line test to define when a C Corporation is purposely avoiding income tax or what is an impermissible accumulation of earnings. Historically, accumulated earnings tax applied to shareholders on their share of any profits that were not paid out by the corporation , if the failure to pay dividends was motivated by a desire to prevent the surtax from coming into play. This created an impossible evidentiary standard for the Secretary of the Treasury. The Secretary was to determine if the accumulation was, “unreasonable for the purposes of the business.” Corporations could invest their profits to increase future income. Partnerships were taxed on their share of the profits. There was no differentiation of whether or not the profit was received. The accumulated earnings tax was replaced by a ten percent tax on undistributed profit. The accumulated earnings tax underwent numerous changes throughout the 1910 and 1920s.
In 1920, the Supreme Court ruled, in Eisner v. Macomber,“We are clear that not only does this stock dividend really take nothing from the property of the corporation and add nothing to that of the shareholder, but that the antecedent accumulation of profits evidenced thereby, while indicating that the shareholder is richer because of an increase of his capital, at the same time shows he has not realized or received any income in the transaction.” The Court affirmed the right of Congress to tax under the Sixteenth Amendment. However Congress did not have the power to redefine income. In other words the holding from this case, “A pro rata stock dividend where a shareholder received no actual cash or other property, and retained the same proportionate share of ownership of the corporation as was held prior to the dividend, was not taxable income to the shareholder within the meaning of the Sixteenth Amendment, and that an income tax imposed by the Revenue Act of 1916 on such dividend was unconstitutional, even where the dividend indirectly represented accrued earnings of the corporation.” After Macomber, Congress dropped attempts to tax the shareholder and pursued Corporations for Accumulated Earnings Tax. In most cases, the corporation has the burden to prove its accumulated earning, also known as retained earnings are reasonable.
In Doug-Long Inc. v. Commissioner the court held that the taxpayer had the burden of proving whether its earnings and profits were permitted to accumulate beyond the reasonable needs of its business. The court held that the taxpayer failed to carry its burden of disproving the presumption that its earnings and profits accumulated beyond its reasonable needs and that the taxpayer was liable for the tax imposed under § 531. Doug Long operated a truck stop and service station. He rented out space to a United States Post Office and a diner. He argued that he required the accumulated earnings due to :(a) development and expansion of its business; (b) supply and fuel inventory problems; (c) vapor emission recovery system; (d) increased parking space; (e) construction of a truck service-repair facility, and (f) an outstanding debt owed to the taxpayer. At the time of the case, the 1970’s Arab Oil Embargo was taking place, and the taxpayer worked very hard to maintain gasoline in his truck stop and service station. However, the taxpayer or the opinion didn’t consider the politics of the Arab Oil Embargo. Historically, the Arab Oil Embargo was a very difficult time for Americans and gasoline companies and it was very difficult for many business owners, such as Doug Long, to maintain gasoline. In hindsight, if more evidence about the challenging gasoline market had been presented, the outcome might have been different. The Court held the issues raised by the taxpayer were too distant and not concrete with the future needs of the business uncertain or vague.
Shortly after the Doug Long matter the Bardahl formula was used to determine taxpayer’s corporation's working capital needs. A corporation's working capital needs were the amount of working capital necessary for one operating cycle. An operating cycle consists of: (a) an inventory cycle, (b) an accounts receivable cycle, and (c) a credit cycle. The operating cycle is (a) plus (b) minus (c). The Bardahl formula provides the mechanism for determining each component cycle. Both parties agreed the Bardahl formula should be used in this case. However, the numbers each side preceded were different. The Bardahl formula originated in Bardahl Manufacturing Corporation v. Commissioner, T.C. Memo 1965-200; 1965 Tax Ct. Memo LEXIS 128; 24 T.C.M. (CCH) 1030; T.C.M. (RIA) 65200, (1965).Bardahl Manufacturing Corporation was a multinational corporation. Petitioner(Bardahl ) required working capital at the end of each year at least in the amount sufficient to cover its reasonably anticipated costs of operation for a single operating cycle. Since its operating cycle during the period 1956 through 1959 averaged approximately 35 percent of a year, its working capital requirements for the continuation of its normal operations amounted to approximately 35 percent of its reasonably anticipated (and steadily increasing) total annual operating costs and cost of goods sold as of the end of each of the years in issue. In modern times, some question whether or not large corporations, such as Microsoft, Apple, Google, or Facebook, are similar to Bardahl Manufacturing in the 1970’s. Using the Bardahl company as a model, the tax court was able to determine the amount of working capital necessary for a year in the manufacturing industry. As a result, the courts found that Bardahl did not have accumulated earning in year 1957. However, the company did in the years 1956, 1958, and 1959 due to Ole Bardahl’s drawing account. Ole Bardahl was the major stockholder in Bardahl Manufacturing and its related companies, which could be compared to Microsoft, Apple, Google or Facebook today. However, Ole engaged in loans and other transactions that would not be tolerated in today’s corporations. These practices included the use of a drawing account for Ole Bardahl and real estate investments unassociated with the business. The purpose of the drawing account was to make cash advances and to pay certain personal bills during Ole Bardahl’s absence from the country. From 1956 to 1959, Ole Bardahl traveled extensively in connection with the business operations, and his federal taxes were paid from this account every January by the petitioner. Additionally, Ole Bardahl made substantial cash payments to the company in reduction of his temporary loan balance several times a year and paid off the remainder of his account every December. At the same time, the petitioner also engaged in real estate investments unrelated to the business, or stated in other words, having no reasonable connection with the business. The Court held these were investments he want to invest with his friends, and the transactions are listed as numbers one and two in the treasury Reg. 1.533-1(a)(2). As a result of the Bardahl case, several new standards helped to clarify when the accumulated earning tax penalty could be applied to a business.
The Court stated, “ given the nature of petitioner's business, the amounts of its inventories and the rate of inventory turnover, the amount of its accounts receivable, and the collection rate thereof, we would be unable to find on the record before us that a cash reserve sufficient to cover one year's operating costs would be justified. The parties appear to agree on brief that the most appropriate basis for determining petitioner's need for operating capital is to compute the amount of cash reasonably expected as being sufficient to cover its operating costs for a single operating cycle. The evidence discloses that the corporation's operating cycle, consisting of the period of time required to convert cash into raw materials, raw materials into an inventory of marketable Bardahl products, the inventory into sales and accounts receivable, and the period of time required to collect its outstanding accounts,(which averaged approximately 4.2 months during the 4 years here involved). Thus the length of Manufacturing's operating cycle during the period 1956 through 1959 averaged approximately 35 percent of a year. In the Court’s opinion, at the beginning of each year petitioner would need liquid assets to meet operating expenses for a maximum of only 4.2 months. This was based on the assumption that no operating revenue would be received until the expiration of its operating cycle. Additional expenditures for operating costs beyond the first 4.2 months of each year would not be incurred without the production of operating revenue.”
The corporate purpose or intent is a subjective question, therefore difficult of proof. However, Treas. Reg. § 1.533-1(a)(2), provides three indicia of the purpose to avoid income tax with respect to a corporation's shareholders: (i) Dealings between the corporation and its shareholders, such as withdrawals by the shareholders as personal loans or the expenditure of funds by the corporation for the personal benefit of the shareholders, (ii) The investment by the corporation of undistributed earnings in assets having no reasonable connection with the business of the corporation (§ 1.537-3), and (iii) The extent to which the corporation has distributed its earnings and profits. The Court was unable to find from the record that the above-mentioned loans and advances to Ole Bardahl were of indefinite duration and should be regarded as a substitute for the distribution of dividends to the corporation's principal stockholder.
The corporate meetings minutes revealed what Ole Bardahl envisioned was needed for capital for Bardahl Manufacturing and subsidiaries. The Secretary was reported in the corporate minutes to have stated, “in his opinion, it might be good financial policy to hold a minimum end dividend payment in 1958, in order to retain sufficient liquid capital to meet not only current working capital needs, but also to provide necessary funds to complete the expansion proposals.”
The Court in the final paragraph of the opinion agrees with the reasoning of the Petitioner on its needs and practice not to incur loans. The Court stated,
“Although the evidence before us discloses that petitioner had followed a consistent policy of financing its operations and capital improvements exclusively with cash expenditures and despite the further fact that it has demonstrated a favorable dividend record which shows that throughout the 4-year period here involved it had distributed an average of approximately 18 percent of its net income (after taxes) as cash dividends to its shareholders, these factors are overridden by its substantial investment in unrelated real estate ventures and its loans made for purposes unrelated to its business throughout each of those years. Accordingly, in addition to the statutory presumption that at the end of 1956, 1958, and 1959 was availed of for the purpose of avoiding taxes on its shareholders by reason of the fact that it allowed its earnings and profits to accumulate beyond its reasonable needs, we are of the opinion that the record in its entirety, independently demonstrates that such accumulations were in fact due to the purpose of avoiding taxes on its shareholders and we so hold.”
Presently, several large corporations share similarities with Bardahl Manufacturing of the 1950’s, such as Microsoft, Apple, Google, and Facebook, but these modern companies have not been penalized with the accumulated earnings tax. In July, 2004 Microsoft had accumulated earnings of 60 billion, they paid a dividend of $0.16. Later, in December 2004, Microsoft paid 32 billion dollars in a one -time dividend payout, and the dividend was doubled to $0.32. Bill Gates, the founder of Microsoft, had persuaded the Board of Directors not to pay dividends until 2004 while he was creating a charitable trust. Once the trust was created, the dividends were then paid out, and Gates received $3.2 billion all of which was donated to charity . Although Gates is a very charitable man, donating millions of dollars and countless hours to help those in need, the decision to withhold dividend payouts until 2004 can be seen as personal gain. Gates did not have to pay taxes because of his large charitable donation, and his persuasion of the Board of Directors could arguably be seen as unrelated to Microsoft.
Another major company who seemingly avoided the accumulated earnings tax is Apple which in the past few years has gained incredible profitability. Within the first quarter of 2012 , Apple profits reached 13.1 billion dollars, making the company one of the most successful businesses to date. This was not the first time Apple had seen profits of 13.1 billion dollars though; their revenue in the fourth quarter of 2010. was also 13.1 billion dollars. Last year alone, Apple added 38. billion dollars to its cash reserves, and reports suggest the company is worth 97 billion dollars in cash and equivalents. Of the 97 billion dollar net worth, about 64 billion dollars is offshore which is not subject to United States’ tax laws. In the past Microsoft and Apple have been competitors in the business world, but in 2010, Apple surpassed Microsoft in terms of revenue for the first time ever. Their revenues were a record setting 20.34 billion dollars. Since then, Apple has continually come out on top with Microsoft only reporting 20.9 billion dollars revenue at the end of 2011 while Apple reported 46.33 billion dollars in revenue for the same period. Not surprisingly, Apple’s profits exceeded those of Microsoft’s in April 2011 for the first time ever. This past quarter alone, Apple’s net income of 13.06 billion dollars was almost double that of Microsoft’s net income of 6.62 billion dollars. Peter Oppenheimer, Apple’s chief financial officer, told analysts that the company and its board of directors were “actively discussing” uses of the cash, including potential acquisitions and further investments in the company’s supply chain. “We’re not letting it burn a hole in our pockets,” he said.
Due to the large amount of publicity over their net revenue, it is not surprising that Apple announced it would pay dividends on first quarter earnings and a stock purchase.
With so much net capital recorded, many wonder how both Microsoft and Apple have avoided the accumulated earnings tax. Clearly, both companies are in the public spotlight, and their huge cash reserves are very well documented worldwide. In order for the two companies to avoid the AET, both would not only have to justify their cash reserves but show their decision to withhold dividends was reasonable. Apple alone is worth more than the government of Greece, and many question how they avoided the accumulated earnings tax. The answer comes in the form of the economy. After the crash of 2008, most companies had increased accumulated earnings because it became substantially more difficult to obtain credit or loans. As a result, corporations had to have large cash reserves to cover their expenses and expand their business ventures. The previous $250,000 limitation seems unreasonable given the economic downturn where cash flow was vital to profitability and the significant increase in company’s research and development needs..
Apple’s announcement to pay dividends highlights the cash they've been holding for all this time, and it’s unclear why the IRS has not charged Apple with the accumulated earnings tax for previous years. One could hardly argue that the retained earnings were needed for research and development. Nor did the accumulated retained earnings represent a "reasonable" amount of working capital . For a company the size of Apple, spending 20 billion dollars on research is not an unreasonable number, but within the past year, their cash reserves increased by 37% to 33.6 billion. The extra 13 billion could certainly pose a problem because it’s well over the $250k retained limit, but Apple had a plan. Even though Apple is reportedly worth 95 billion dollars, only the 33.6 billion is in the United States. Most of the companies’ money was overseas, and the 37% increase was new this year, so Apple only had to worry about planning for the extra 13 billion dollars. The corporation was able to create a plan including buyback and dividends for the extra funds, and the IRS is only interested in those who store cash without a plan. Additionally, Apple uses the Double Dutch and Irish Sandwich to gain overseas profit, like most other companies’, but the money is untouchable to the IRS. Since the profit is out of their tax jurisdiction, Apple cannot be penalized with the accumulated earnings tax.
“They really didn't have that much cash on hand, a company the size of Apple can make plans for 20 billion pretty easily. Over the last year the cash balance increased 37% to $33.6 billion. That extra 13 billion they made last year is a little more difficult to make a reasonable plan for.”
“A bit more than the $250k where the AET (allegedly) becomes a concern.”
“Isn't a large portion of their cash overseas? Might that have something to do with it?”
“They have 70B offshore, and it's staying offshore.”
“A bit more than the $250k where the AET (allegedly) becomes a concern.”
“The AET only becomes a concern when you don't have a plan, Apple had a plan. They simply did not have that much money on hand before this year, they had 20 billion. Ignore what the press is saying about 95 billion, most of that is in the Bahamas. The real number is 33.6 billion, that is what is taxable, that is what they had to figure out a plan for, and the new plan included a buyback and dividend.”
“Just like every other company they used the double Irish and Dutch sandwich to get overseas profits to their tax haven of choice, the Bahamas. The IRS can't touch it, so it doesn't matter as far as the AET is concerned”.
The Double Irish and Dutch Sandwich refers to the international tax practice of moving the licensing of intellectual property to low tax havens through several different countries. this is outside the topic of this paper. However, an article from the New York Times is hereby attached. Oracle, IBM, Google, Microsoft and Facebook use the Double Irish and Dutch Sandwich in addition to Apple. The New York Times credited Apple with the creation of the Double Irish with Dutch Sandwich; a tax-avoidance strategy of routing profits through the Netherlands to Ireland and then through the Caribbean. , “The Times reports Apple has created subsidiaries in low-tax places like Ireland, the Netherlands, Luxembourg and the British Virgin Islands — some little more than a letterbox or an anonymous office — that help cut the taxes it pays around the world.”
Apple recently advertized for an iOS software engineer” strengthen its multi-view stereo research group" — in other words, 3D. The engineer would research and create patents for 3D usage in the iphone. ipad, Mac and iTV for cameras and display. Microsoft is researching 3D holograms. drivera1's reply:”Micro spent about $9 billion on R&D and totaling almost $69 billion over the last decade. Microsoft was granted the third most U.S. patents of all companies in 2010. IBM was granted 5,896 patents in 2010. Samsung was second with 4,551. Microsoft was granted 3,094 patents in 2010. Apple was granted 563 patents in 2010.
In the past, Apple with Steve Jobs did not spend money on research and development as Steve Jobs was happy to announce. However, in 2006 Apple spent $500 million and in 2007, it spent $800 million. The results for Apple were the iphone and ipad. Both products generated the record breaking revenue In 2007, Microsoft spent over $7 billion. This year Apple devoted $2.4 billion to R&D. Apple, post Steve Jobs will need to do R&D to continue it dominance in technology.
The New York Times published an article stating that Apple only paid 9.8 % tax rate. was based upon quarterly taxes paid in 2011 The 9.8 % tax rate was based upon quarterly taxes paid in 2011. Taxes paid in the first two quarters were based upon Apple paying either 90% of Apple’s expected tax for 2010 or 100% of the total tax on last year’s taxes. In other words, The NYTimes was comparing apples and oranges, two different tax bills with different total tax in one figure. The article also stated that Apple relocated their investment headquarters to Nevada. The state of Nevada does not have a state income tax, thereby, saving employees and the company money. The New York Times published as similar article on General Electric (GE) and that company’s tax avoidance practices. General Electric’s reputation score dropped from the low 30s to the high teens. Apples reputation score began in the 50s, increased the score value, and returned to its normal 50 score. Apple responded to the allegations, from The New York Times , by stating, “ Apple pays an enormous amount of taxes, which help our local, state and federal governments. In the first half of fiscal year 2012, our U.S. operations have generated almost $5 billion in federal and state income taxes, including income taxes withheld on employee stock gains, making us among the top payers of U.S. income tax. Apple’s last annual report that it paid $8.3 billion in worldwide taxes.
The blog discussion on Apple and accumulated earnings tax didn’t understand that accumulated earnings tax only applies to United States earnings, not international intellectual property. . Local United States and small corporations are the only corporations that need to be concerned with accumulated earnings tax. As business changes, the internal revenue tax code must change. On one hand, accumulated earnings tax originated in the early 1910’s and is obsolete. However, both Apple and Microsoft may have paid dividends because of their excessive earnings and the threat of accumulated earnings tax.
Ethics in accumulated earnings tax appears to be based on the company and the public view of the company.